Bhuvanesh Vyas vs I.G.N.O.U.
2019 Latest Caselaw 2126 Del

$~R~10A
*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                               Date of decision: 23.04.2019

+     W.P.(C) 104/2008
      BHUVANESH VYAS                                       ..... Petitioner
                          Through      Mr.A.P. Nagrath, Adv.

                          versus

      I.G.N.O.U.                                           ..... Respondent
                          Through      None.

      CORAM:
      HON'BLE MR. JUSTICE SURESH KUMAR KAIT

                          J U D G M E N T (ORAL)

1. Vide the present petition, the petitioner seeks direction thereby to set

aside office order no.488 dated 07.04.1993 communicated vide letter dated

11.06.1993. Further seeks direction thereby directing the respondents to

take the petitioner back on duty with all consequential benefits.

2. The brief facts of the case are the petitioner was appointed as Senior

Software Engineer in IGNOU in the pay scale of 3700-6700 vide letter dated

02.06.1989 and joined on 11.07.1989 at Delhi. Thereafter the petitioner was

confirmed w.e.f. 11.07.1990 vide letter dated 6/7.02.1991.

3. The petitioner applied for leave for 90 days to visit USA vide

application dated 04.09.1992 and his leave application was approved by the

approving officer on 07.09.1992. He further sought extension up to

12.07.1993 vide his application dated 06.12.1992 sent from Arlington, USA.

4. On 15.02.1993, the petitioner received a telegraphic message that his

Earned Leave and Extra Ordinary Leave had not been sanctioned and he was

asked to report for duty within a period of 30 days failing which his services

shall stand terminated w.e.f. 22.09.1992 retrospectively. The Petitioner, not

being physically fit, sent an application dated 23.02.1993 along with medical

certificate from USA. He returned to India on 22.03.1993 and informed the

Registrar that he was still not fit to join duties and sent a Medical Certificate

in support thereof. On being declared medically fit, the petitioner resumed

duty on 01.06.1993 along with sickness certificate and medical fitness

certificate. The petitioner was allowed to join duty and mark his attendance.

On 03.06.1993, the petitioner submitted a representation requesting for

regularisation of his leave period. On 11.06.1993, the petitioner was

informed that his services had been terminated w.e.f. 22.09.1992 vide order

dated 07.04.1993, which was sent to him under registered post on

08.04.1993 on the address of USA. Thereafter the petitioner was not

permitted to mark his attendance from 11.06.1993. He was not paid any

salary for the period for which he had applied for leave.

5. Learned counsel appearing on behalf of the petitioner submits that on

17.06.1993, the petitioner sent a representation indicating that his

termination was illegal and should be reconsidered. The said representation

was rejected and thereafter the petitioner filed W.P.(C) 5023/1993 in the

High Court of Judicature for Rajasthan at Jodhpur and challenged the action

of termination of his service as being violative of statutory rules and

principles of natural justice. The same was dismissed on territorial

jurisdiction on 16.08.2005. Being aggrieved, the petitioner filed a Civil

Special Appeal No.488/2005 before the Division Bench of the aforesaid

court and the same was disposed of vide order dated 28.11.2007 by

observing that they do not find any error in the impugned judgement of the

learned Single Judge.

6. It is pertinent to mention that in order dated 16.08.2005 passed in

W.P.(C) No. 5023/1993, the learned single Judge of High Court of

Judicature for Rajasthan at Jodhpur given liberty to the petitioner to agitate

his cause before the court having jurisdiction to entertain and adjudicate.

7. The present petition came up for hearing on 22.04.2019 and since

none appeared on behalf of the respondents, it was directed that if the

respondent would not be represented by anyone on the next date of hearing,

this court would proceed in the matter in the absence of the respondent.

8. Today none appeared on behalf of the respondent.

9. In counter affidavit filed to the petition, it is stated that as per the

relevant leave rules, earned leave of duration of more than 30 days can be

granted only by the Vice Chancellor upon an application forwarded by the

concerned Director under whom the employee is working. The correct

factual position is that the earned leave was never granted by the competent

authority, however, the petitioner showing scant regard to the interest of the

University and the discipline to be maintained in the university. The

petitioner proceeded to abroad without due sanction or proper intimation by

him to the same.

10. It is denied in the counter affidavit that leave application of the

petitioner was approved on 07.09.1992 based on the signature of Director

The so-called signatures of the Director under whom the petitioner was

working is of no consequence as he was not the appropriate authority to

sanction the earned leave. As the earned leave was not sanctioned in the first

place, no question of the same being extended upto 12.07.1993 upon an

alleged a telephonic conversation with the Director, Computer Division. In

any event, the said extension of leave of 203 days was asked in continuation

of the earlier earned leave. Both the earlier earned leave and the extension

were never granted to the petitioner.

11. It is also stated in the counter affidavit that the petitioner submitted a

purported medical certificate dated 19.02.1993 but no explanation was given

by the petitioner for his unauthorised absence starting from 22.09.1992.

Therefore, it was felt that the petitioner was not interested to render services

with the respondent university as even after issuance of notice of

termination, he did not resume his duty. Subsequent to the receipt of reply

by the petitioner and after expiry of one month period as stipulated in the

telegram dated 15.02.1993, the respondent university was constrained to

issue order dated 07.04.1993 whereby the services of the petitioner has been

terminated. The said order was communicated to the petitioner to his last

known address in US vide registered post.

12. In the counter affidavit, it is also denied that the initial leave of 90

days was ever sanctioned in favour of the petitioner. Leave beyond the limit

of 30 days for Group A Officers such as the petitioner, is to be sanctioned by

the Vice Chancellor. Accordingly, the petitioner had moved an application

for grant of leave on 04.09.1992. However, the same was never sanctioned

by the Vice Chancellor. The signatures of Professor A.A. Shamim,

Director, Computer Division were only for the purpose of forwarding the

same to the competent authority for grant of sanctioned leave of 90 days to

the petitioner. The signatures by itself do not mean that leave has been

sanctioned.

13. It is not in dispute that vide order dated 06.02.1991, the services of the

petitioner was confirmed as Senior Software Engineer in the pay scale of

Rs.3700-125-4950-150-5700 w.e.f. 11.07.1990. It is also not in dispute that

the post of the petitioner is Group A post. As per appointment letter, services

of the petitioner is to be dealt with CCS (CCA) Rules, 1965. Rule 14(1) of

the Rules provides as under:

"14. Procedure for imposing major penalties: No order imposing any of the penalties specified in Clauses (v) to (ix) of Rule 11 shall be made except after an inquiry held, as far as may be, in the manner provided in this Rule and Rule 15, or in the manner provided by the Public Servants (Inquiries) Act, 1850, (37 of 1850), where such inquiry is held under that Act."

14. There is a mandate that none of the major penalties can be imposed

unless an inquiry has been held in the manner provided in the rules. This is

also the mandate of Article 311 of the Constitution and this protection is

available to the employees to whom CCS(CCA) Rules apply. Article 311(2)

of the Constitution is reproduced as under:

"No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry, in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges:

(Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed :)"

15. In view of above, it seems that the respondent has completely violated

these provisions in the Constitution and also in the Rules. The impugned

order, on the very face of it, being violative of the Rule of natural justice and

against the specific provisions made in the rules which is legally not

sustainable in law.

16. Apart from the impugned order being illegal and violative of Article

311 (2) of the Constitution and Rule 14 of CCS (CCA) Rules, it suffers from

glaring infirmities as enumerated as under:

i. The order of termination can never be retrospective. It can only take

effect from the date the appropriate disciplinary authority passes such

an order. In the present case, the impugned order is dated 07.04.1993

but has been made effective from 22.09.1992. Thus, the respondent

has betrayed his ignorance of the provisions of the Indira Gandhi

National Open University (IGNOU) Act, 1985 wherein Statute 19(5)

relating to removal of employees of the University, it has been clearly

stipulated that the removal shall take effect from the date on which the

order of removal is made.

ii. The contention of the respondent that leave was not sanctioned is

belied from the records of the respondent department. As per the

relevant rules, earned leave of more than 30 days duration can be

granted only by the Vice Chancellor. This statement is apparently

false which is clearly established by Annexure R-1 which shows that

the powers have been delegated for grant of leave, Item no.3 relates to

earned leave. Registrar (Admn.) has been delegated full powers in

respect of Group 'A' and 'B' officers except Directors of Schools and

Heads of Divisions.

17. It is seen from Annexure P-16 that earned leave for the period from

22.09.1992 to 21.12.1992 has been sanctioned. Thus, it is clear from the said

Annexure that based on this sanction, office note No.AD/2/NA/1216/17

dated 28.01.1993 had been issued. This also includes sanction of EOL for

203 days from 22.12.1992 to 12.07.1993. It is apparent that on

recommendation from the Registrar, leave upto 12.07.1993 had been

sanctioned by the Vice Chancellor. The petitioner has also been paid salary

upto January 1993.

18. An extract of PBR pertaining to the year 1992-93 clearly establishes

that salary was paid upto January 1993. The impugned order ignores all

these aspects, as it appears that some senior functionaries of the respondent

department approached the entire issue with pre-made-up mind just to get

rid of the petitioner, the reasons for which are best known to them.

19. As per Annexure P-16 collected under provisions of RTI act reveals

that Assistant Registrar (Admn.) had mentioned that the Director (Computer

Division) has already sanctioned leave for 91 days i.e. from 22.09.1992 to

21.12.1992 and forwarded the extension of EOL for consideration. It has

been proposed that the leave may be sanctioned by the Registrar as powers

for such sanction have been delegated to him and for that further sanction of

EOL for 203 days, i.e. 22.12.1992 to 12.07.1993, the Vice Chancellor may

be requested to sanction. On this note, Registrar has made a noting:

"Submitted for kind consideration and for sanction of EOL from 22.12.1992 to 12.07.1993."

20. Apparently, he had sanctioned the leave from 22.09.1992 to

21.12.1992 and for sanction of further extension, he submitted the proposal

to the Vice Chancellor through PVC(G).

21. It is not in dispute that the petitioner being Group A Officer and his

service conditions are under the CCS(CCA) Rules which has not been taken

care while terminating the services of the petitioner in the present case.

22. In view of above discussion, I hereby set aside the order dated

07.04.1993 which was communicated vide letter dated 11.06.1993. Since

the petitioner has attained the age of superannuation and has already been

retired, therefore, the petitioner has not worked, the petitioner is entitled for

50% back wages till the age of superannuation.

23. Needless to state that if the petitioner is entitled for pensionary

benefits, order to that effect shall be passed as per the rules.

24. The order passed by this court shall be complied with within six

weeks from the receipt of this order.

(SURESH KUMAR KAIT) JUDGE APRIL 23, 2019 ab